Sigley and De Santis & Ors (No 2) - [2020] FamCA 855

FAMILY COURT OF AUSTRALIA

SIGLEY & DE SANTIS AND ORS (NO. 2)

[2020] FamCA 855

PLEADINGS – strike out application brought in respect of the 17^th respondent’s counterclaim – trial one week away – counterclaim based on same substratum of facts on which applicant relies – no basis for strike out shown.

SUBPOENA – claim to legal professional privilege in five items of correspondence – no factual explanation given to support the claim – trial listed to begin on 15 October 2020 for 12 days – Senior Registrar to inspect impugned documents to determine whether privilege exists and give judgment on 9 October 2020.

SHAM TRANSACTIONS – review of key authorities.

Family Law Act 1975 (Cth), ss 79, 90SL, 90SM

Australian Incentive Plan Pty Ltd v Attorney-General (Vic) (No2) (2012) 44 VR 661
Australian Incentive Plan Pty Ltd v Babcock & Brown International Pty Ltd [2010] VSC 564
Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471
James Miller Holdings Ltd v Graham (1978) 3 ACLR 604
Lewis v Condon (2013) 85 NSWLR 99
Marvel v Marvel (2010) 43 Fam LR 348
Pollard & Nordberg [2019] FamCA 365
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Salah v Salah (2016) 56 Fam LR 299
Scott v Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265

J. D. Heydon & M. J. Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Australia, 7^th ed, 2006)
G. Thomas & A. Hudson, The Law of Trusts (Oxford University Press, 2^nd ed, 2010)

APPLICANT:

Ms Sigley

FIRST RESPONDENT:

Mr De Santis

SECOND RESPONDENT:

Q Pty Ltd as trustee for Q Discretionary Trust

THIRD RESPONDENT:

R Pty Ltd as trustee for De Santis Family Trust

FOURTH RESPONDENT:

Mr S De Santis

FIFTH AND SIXTH RESPONDENTS:

Mr T and Mr U as liquidators of E Pty Ltd (in liquidation)

SEVENTH RESPONDENT:

De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund

EIGHTH RESPONDENT:

V Partners Pty Ltd (formerly P Partners Pty Ltd)

~~NINTH RESPONDENT:~~

~~W Pty Ltd~~

TENTH RESPONDENT:

X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis

ELEVENTH RESPONDENT:

E6 Pty Ltd

TWELFTH RESPONDENT:

Ms De Santis (also known as Ms BB De Santis)

THIRTEENTH RESPONDENT:

E Pty Ltd

FOURTEENTH RESPONDENT:

Mr AA De Santis

FIFTEENTH RESPONDENT:

Ms EE De Santis

SIXTEENTH RESPONDENT:

Ms DD De Santis

SEVENTEENTH RESPONDENT:

Ms AA De Santis

FILE NUMBER:

MLC

9296

2015

DATE DELIVERED:

8 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

6 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. St John QC with Mr P. Agardy

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

COUNSEL FOR THE FIRST RESPONDENT:

No appearance

SOLICITOR FOR THE FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE THIRD…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 855
Decision Date: 8 October 2020

CaseChat Overview and Summary

In *Sigley and De Santis & Ors (No 2)*, Wilson J of the Supreme Court of New South Wales considered applications by the applicant to strike out the defence and counterclaim of the 17th respondent, as well as the amended defences of several other respondents. The applicant also sought to challenge a claim of legal professional privilege over five items of correspondence.

The court was required to determine whether the 17th respondent's counterclaim, which was based on the same factual foundation as the applicant's own case, disclosed no reasonable cause of action or was otherwise an abuse of process warranting a strike out. Additionally, the court had to consider the validity of the claim to legal professional privilege over the five disputed documents, in circumstances where a trial was imminent.

Wilson J dismissed the strike out applications concerning the 17th respondent's defence and counterclaim, and the amended defences of the other respondents, finding no basis for such an order. Regarding the claim of legal professional privilege, the court noted a lack of factual explanation to support the assertion. Consequently, the Senior Registrar was directed to inspect the impugned documents to determine the existence of privilege and provide judgment on this issue shortly before the trial commenced.

Orders

Orders of the court

I dismiss the applicant’s strike out applications in relation to the 17th respondent’s defence and counterclaim, and the amended defences of the third, fourth, seventh, 10th, 11th, 14th and 16th respondents.

By 2pm on 8 October 2020 Ms Li Rosi must provide a copy by email to Senior Registrar Hoult of the five documents correctly described in her client’s application in a case filed 30 September 2020.

This proceeding is listed before Senior Registrar Hoult for judgment on the notice of objections at 9am on Friday 9 October 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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